HMY Roomstore, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 2005

344 N.L.R.B. 963 (N.L.R.B. 2005)

HMY ROOMSTORE, INC.
344 NLRB No. 119
963
HMY Roomstore, Inc. and Elmer Pastora. Case 5–
CA–30809
June 30, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On May 7, 2004, Administrative Law Judge John T.
Clark issued the attached decision. The Respondent filed
exceptions and a supporting brief. The General Counsel
and the Charging Party each filed an answering brief, and
the Respondent filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, HMY Roomstore, Inc., Jes-
sup, Maryland, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 In adopting the judge’s conclusion that the Respondent violated
Sec. 8(a)(1) by suspending and discharging 13 employees for refusing
to return to work from an in-plant work stoppage, we note the judge’s
finding that the employees left the building when Operations Manager
Michael Ratzkin directed them to do so. We find it unnecessary to rely
on the judge’s finding that employees were not aware of the Respon-
dent’s open door policy. The judge found, and we agree, that the Re-
spondent’s policy had been used to resolve individual problems and not
group complaints like those involved in this case. In any event, the
existence of an established mechanism for presenting group grievances
is only one factor to be considered in determining whether employees
lost the protection of the Act by continuing an in-plant work stoppage
too long. See generally Molon Motor & Coil Corp. v. NLRB, 965 F.2d
523, 525 (7th Cir. 1992) (recognizing that there is no “clear-cut” line
between employees’ right to engage in an in-plant work stoppage and
an employer’s property rights).
In the absence of exceptions, we adopt the judge’s conclusion that
the Respondent violated Sec. 8(a)(1) of the Act by questioning em-
ployee witnesses Beltran and Mejia without providing the safeguards
required by Johnnie’s Poultry Co., 146 NLRB 770 (1964), enf. denied
344 F.2d 617 (8th Cir. 1965).
Member Schaumber agrees with his colleagues’ adoption of the
judge’s finding that Respondent violated Sec. 8 (a)(1) of the Act. He
does so without relying on the judge’s broad generalized credibility
resolutions which he finds inadequate. He has determined from a re-
view of the evidence discredited by the judge that a reversal of the
violation found is not required.

Karen Itkin Roe, Esq., for the General Counsel.
Brian D. Bertonneau, Esq., of Richmond, Virginia, for the Re-
spondent.
Ricardo A. Flores, Esq. (Public Justice Center), of Baltimore,
Maryland, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN T. CLARK, Administrative Law Judge. This case was
tried in Baltimore, Maryland, on May 1, 2, and 6, 2003. The
charge was filed October 23, 2002, and the complaint was is-
sued January 30, 2003. The complaint alleges that HMY
Roomstore, Inc. (the Respondent), on or about April 26, 2002,
suspended and then discharged the Charging Party and 13 other
employees for engaging in a protected, concerted, work stop-
page in violation of Section 8(a)(1) of the National Labor Rela-
tions Act (the Act).
During the hearing counsel for the General Counsel moved
to amend the complaint by: (1) correcting the spelling of the
name of dischargee Giralt, (2) removing the name of dischargee
Jose Castro, and (3) alleging an additional violation of Section
8(a)(1) of the Act when the Respondent, by its counsel, alleg-
edly failed to give employee witnesses the requisite assurances
when interviewing them in accordance with Johnnie’s Poultry
Co., 146 NLRB 770 (1964), enf. denied 344 F.2d 617 (8th Cir.
1965). The motions were unopposed and granted.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by counsel for the General Counsel, the Respondent, and the
Charging Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Virginia corporation, with an office and
place of business in Jessup, Maryland, has been engaged in
operating retail furniture stores and distribution and manufac-
turing facilities, including a distribution and manufacturing
facility in Jessup, Maryland. During the 12-month period end-
ing January 30, 2003, the Respondent sold and shipped from its
Jessup, Maryland facility materials and goods valued in excess
of $50,000 directly to points located outside the State of Mary-
land. The Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The Respondent’s Jessup distribution facility receives 12 to
15, 53-foot trailers daily. The trailers contain furniture sent
from North Carolina. After unloading, the furniture is sorted
and prepared for delivery to customers the following day. The
employees at the facility are not represented by a collective-
bargaining representative and about half of them are Spanish-
speaking. Employees are given handbooks, written in Spanish
or English, when they are hired. The handbook explains the
Respondent’s “open door policy,” it states, in relevant part:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD964
Although the Company endorses and recommends the use of
chain-of-command reporting it also provides an avenue for
associates to access any and all levels of management regard-
ing concerns of being treated different or unfairly. Should an
associate feel that it is inappropriate to take his/her concerns
to his/her supervisor, then the associate may approach the
next level of supervision to discuss those issues.
[R. Exh. 1 at 15.]
Michael Ratzkin, the operations manager, is in charge of the
facility. Ratzkin is not fluent in Spanish and his words were
translated when he spoke to the employees in the lunchroom on
April 26, 2002.
B. Events of April 26, 2002
The following factual findings require an assessment of the
credibility of the witnesses. I have fully reviewed the entire
record and carefully observed the demeanor of the witnesses. I
have also considered the apparent interests of the witnesses;
corroboration, or lack thereof; and the consistencies or incon-
sistencies within the testimony of each witness and between the
testimony of each and that of other witnesses with similar ap-
parent interests. Testimony in contradiction to that upon which
the following factual findings are based has been carefully con-
sidered and discredited. See generally, NLRB v. Walton Mfg.
Co., 369 U.S. 404, 408 (1962). Based on the foregoing I con-
clude that the testimony of the General Counsel’s witnesses is
more reliable and trustworthy than the testimony of the Re-
spondent’s witnesses. In some instances, an interpreter was
needed during testimony. Necessary allowances for unimpor-
tant testimonial variations, attributable to language difficulties,
has been made. My observation of the demeanor of the Gen-
eral Counsel’s witnesses persuades me that each was trying to
tell the truth as best they could. They each appeared forthright,
candid, and straightforward. In making the foregoing credibil-
ity findings I am cognizant that dischargee Amaya admitted
that he began his employment with the Respondent under a
false name and social security number. He also candidly testi-
fied that when he received, “good papers” and social security
number, he told the Respondent and was permitted to continue
in its employ until he was discharged for engaging in the events
of April 26, 2002.
At approximately 9 a.m. on April 26, about 25 to 30 em-
ployees gathered in the employee lunchroom in anticipation of
meeting with Ratzkin regarding a wage increase. The employ-
ees had been trying, without success, to meet with him over this
issue for some time. After the employees were assembled dis-
chargee Hugh Giralt asked Supervisor Edgar Ortiz to request
that Ratzkin come to the lunchroom. When Ratzkin appeared
some English speaking employees said that they wanted a raise.
Ratzkin angrily responded that this was not how to ask to meet
with him. The employees then chose Supervisor Alex Bustillo
to act as their translator, but Ratzkin ordered Bustillo to return
to work and left. Ratzkin returned to the lunchroom in 10 or 15
minutes and began shouting at the employees. He told them
that he would not meet with them in groups but only one-on-
one, and that if they did not like working for the Respondent
they should punch out and leave. He told the employees to
return to work and then he again left. Some employees re-
turned to work, but approximately 13 remained in the lunch-
room, hoping that Ratzkin would return so that they could be
“listened to.” Return he did, but only to order the employees to
leave the building and threaten to call the police if they did not.
The dischargees’ timecards show that they were punched out
between 45 minutes to an hour after they assembled in the
lunchroom. The employees left the area, only to return about
noon and sit peacefully on a grassy area adjacent to the drive-
way that leads into the parking lot. Ratzkin observed the indi-
viduals, summoned the police, and at the request of the police,
the individuals departed the area.
The dischargees were initially suspended indefinitely pend-
ing investigation and later discharged for “gross insubordina-
tion” for refusing to return to work on April 26. According to
the Respondent’s position statement (GC Exh. 4) one of the
reasons that the suspensions were converted to terminations is
“the fact of their subsequent return to Company property and
refusal to leave until the police were called.” Ratzkin testified
unequivocally that he decided to terminate the employees and
that their return had nothing to do with their terminations.
When asked on direct examination to what extent the Respon-
dent was motivated to discharge the employees because of their
participation in the meeting his denial was more equivocal.
“I’m not going to say it wasn’t considered. We had talked
about it, but it really had very little, if anything, to do with their
termination.” (Tr. 211.)
C. Analysis and Discussion
In Cambro Mfg. Co., 312 NLRB 634 (1993), the Board,
quoting from the Seventh Circuit’s decision in Molon Motor &
Coil Corp. v. NLRB, 965 F.2d 523 (1992), summarized the
legal framework for analyzing the extent to which in-plant
work stoppages are protected by Section 7 of the Act.
The concerted activities at issue here (i.e., an on-the-
job work stoppage) is a form of economic pressure entitled
to protection under Sec. 7 of the Act. See NLRB v. Wash-
ington Aluminum Co., 370 U.S. 9, 15 (1962) (work stop-
page to protest lack of heat during harsh winter protected
activity under Sec. 7). Not every work stoppage is pro-
tected activity, however, at some point, an employer is en-
titled to assert its private property rights and demand its
premises back. The line between a protected work stop-
page and an illegal trespass is not clear-cut, and varies
from case to case depending on the nature and strength of
the competing interests at stake. See Hudgens v. NLRB,
424 U.S. 507, 522 (1976); NLRB v. Babcock & Wilcox
Co., 351 U.S. 105, 112 (1956). Drawing that line requires
courts to balance “whether the means utilized by the em-
ployee in protesting, when balanced against the em-
ployer’s property rights, are entitled to the protection of
the Act.’’ Peck, Inc., 226 NLRB 1174, 1175 (1976)
(Member Penello, concurring); compare Golay & Co. v.
NLRB, 371 F.2d 259, 262 (7th Cir. 1966) (work stoppage
protected because employer refused to discuss the matter
and hastily discharged the workers without any warning to
leave the property), cert. denied 387 U.S. 944 (1967),
Roseville Dodge, Inc. v. NLRB, 882 F.2d 1355, 1359 (8th
HMY ROOMSTORE, INC. 965
Cir. 1989) (peaceful work stoppage on the shop floor, last-
ing several hours, protected, concerted activity); NLRB v.
Pepsi-Cola Bottling Co., 449 F.2d 824, 829–830 (5th Cir.
1971) (peaceful, unobtrusive work stoppage protected ac-
tivity and employer’s order to leave plant hindered ability
to present grievances), cert. denied 407 U.S. 910 (1972)
with NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240,
252, 255 (1939) (employees who seized and retained pos-
session of employer’s plant for several days engaged in il-
legal trespass); Advance Indus. Div.-Overhead Door Corp.
v. NLRB, 540 F.2d 878, 885 (7th Cir. 1976) (workers who
neglected ordinary grievance procedure and refused to
leave premises after shift ended engaged in illegal tres-
pass); Cone Mills Corp. v. NLRB, 413 F.2d 445 (4th Cir.
1969) (workers who continued their inplant work stoppage
in spite of established grievance procedures and a hearing
from management engaged in illegal trespass); Peck, Inc.,
236 NLRB at 1180 (workers who occupied the employee
lunchroom after shift ended engaged in illegal trespass).
(Footnote omitted.)
312 NLRB at 635. More recently the Board has held that
“when an in-plant work stoppage is peaceful, is focused on a
specific job-related complaint, and causes little disruption of
production by those employees who continue to work, employ-
ees are ‘entitled to persist in their in-plant protest for a reason-
able period of time.’ Cambro Mfg. Co., 312 NLRB 634, 636
(1993).” TPA, Inc., 337 NLRB 282 (2001). Counsel for the
General Counsel submits that at all times each of these condi-
tions—which distinguish a protected in-plant work stoppage
from an unprotected sit-down strike—were satisfied. Accord-
ingly, argues the counsel for the General Counsel, when the
Respondent suspended and later discharged the employees, it
violated Section 8(a)(1) of the Act.
The Respondent contends that the in-plant work stoppage
should be found unprotected for essentially two reasons: the
employees interfered with other employees and disrupted op-
erations and; because of the Respondent’s open door policy
Ratzkin had talked to, and agreed to make himself available to
the employees. Thus, there was no need for a work stoppage
and consistent with the holding in Cambro, above, the work
stoppage was unprotected from the beginning.
I have found no credible evidence to suggest that all the
events on April 26 were anything but peaceful. There is no
evidence that the work stoppage disrupted production by those
employees who continued to work. Accordingly, I find that the
counsel for the General Counsel has established that the em-
ployees in-plant work stoppage was protected, concerted activ-
ity at the outset. In Cambro, above, a Board panel majority
also found the in-plant work stoppage was peaceful and pro-
tected when it began. The panel majority further found that the
in-plant work stoppage became unprotected when it continued
beyond a reasonable period of time.
In Cambro the employees stopped work at between 2:30 and
3 a.m. and the Board determined that the point when the em-
ployer was entitled to reclaim the use of its entire premises was
between 4 and 4:30 a.m. It was at that point that the employees
had been assured the opportunity to meet with the employer’s
general manager, in accordance with the established past prac-
tice, under the open door policy. It was also at this point that
the employees had been ordered, on three occasions, to return
to work. The last two directives offered the employees the
choice of returning to work or clocking out, leaving the prem-
ises, and returning for the scheduled meeting with the general
manager, which was to occur in a few hours.
In finding Cambro consistent with Roseville and Pepsi-Cola,
above, the panel majority analogized the employer’s open door
policy to an established grievance procedure, a factor that was
absent in Roseville and Pepsi-Cola. In so doing the majority
noted that the
employees had used the open door policy to resolve griev-
ances, on two occasions, within the same month as the in-
plant work stoppage, Cambro, at 634. In fact, part of the rea-
son given for the in-plant work stoppage was the general
manager’s failure to respond to employee concerns addressed
in a previous meeting. Accordingly, the panel majority found
that the employer’s second order that the employees return to
work or leave the plant and return later for the meeting served
the Respondent’s immediate interest in maintaining its estab-
lished grievance procedure and placed no undue restriction on
those employees’ right to present grievances within a few
hours pursuant to that procedure. . . . Further in-plant refusals
to work served no immediate protected employee interests
and unduly interfered with the employer’s right to control the
use of its premises.
312 NLRB at 636. In contrast this record is devoid of evidence
that the employees and the Respondent had an established past
practice of using the Respondent’s open door policy as a mean-
ingful avenue of grievance resolution. The three dischargees
testified to signing a form indicating that they had received and
read the handbook “completely.” I credit their testimony that
they were not aware of the Respondent’s open door policy.
Ratzkin’s statements regarding his accessibility were exagger-
ated and generalized—“employees come to see me all day long,
‘I have employees come to see me with personal problems all
the time.”’ He did relate several stories involving individual
employees approaching him for individual solutions, to indi-
vidual problems. (Tr. 186–187.) His stories are consistent with
the credited testimony that he was only willing to speak one-
on-one with the employees (Tr. 156). The Respondent’s open
door policy, in reality, did not allow for group action, in con-
trast to the open door policy in Cambro.
Also unlike Cambro, Ratzkin placed unnecessary restric-
tions on the employees’ right to present grievances by not al-
lowing them to fully articulate the reasons for the in-plant work
stoppage. Cambro at 634. Elmer Pastora credibly testified that
the employees remained in the lunchroom, hoping that Ratzkin
would return, because “we wanted to be listened to. . . . [W]e
wanted to talk about the work pressures and the wages.” (Tr.
157, 161.) When told to leave the premises, unlike the employ-
ees in Cambro, the employees complied immediately. Thus,
another significant distinguishing factor between this case and
Cambro is that when the Respondent asserted its right to con-
trol its premises the employees left the lunchroom as directed.
Additionally, the entire in-plant work stoppage occurred during
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD966
the employees’ normal work hours. Accordingly, I find that the
employees never lost the protection of the Act during while
engaged in their in-plant protest.
Based on the foregoing I find that the counsel for the General
Counsel has proved that at all times the in-plant work stoppage
was peaceful, focused on specific job related complaints,
caused no disruption of work performed by the employees who
choose to continue to work, and was ongoing for a reasonable
period of time, according I find that the employees never lost
the protection of the Act. The Respondent admits that the em-
ployees were suspended, and later discharged, for “Gross in-
subordination—failed to follow direct order” (GC Exh. 5).
Ratzkin stated that the reason was that the employees had been
offered and refused, on three separate occasions, to return to
work. I have found that the counsel for the General Counsel
has established that the employees where engaged in a lawful,
protected, in-plant work stoppage when they were discharged
for their refusal to return to work. Accordingly, I find that the
Respondent has violated Section 8(a)(1) of the Act as alleged.
Because there is no dispute as to the reason for the disci-
pline (the employees refusal to return to work), the Respon-
dent’s motivation is not at issue and therefore the analysis in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), is inappropriate.
LA-Z-Boy Midwest, 340 NLRB 80 (2003); Shamrock Foods Co.
v. NLRB, 346 F.3d 1130 (D.C. Cir. 2003), rehearing denied,
enfg. 337 NLRB 915 (2002); see also Air Contact Transport,
Inc., 340 NLRB 688 (2003).
In the interest, however, of administrative convenience,
economy, and efficiency I will address the counsel for the Gen-
eral Counsel’s additional argument that even were it to be con-
cluded that the employees somehow lost the Act’s protection at
some point before they left the lunchroom, the Respondent still
violated the Act, because the employees were discharged in
retaliation for engaging in protected concerted activity.
I find the following dialogue, between Respondent’s counsel
and Ratzkin dispositive of counsel for the General Counsel’s
additional argument:
Q. To what extent was the company motivated to fire
the 13 employees because of their participation in the
meeting?
A. I’m not going to say it wasn’t considered. We had
talked about it, but it really had very little, if anything, to
do with their termination.
(Tr. 211.) I find Ratzkin’s testimony is an admission that the
employees’ participation in the meeting was, at the very least,
part of the reason for their discharge. I find my conclusion
supported by the Respondent’s shifting reasons for the dis-
charges. Thus, in response to the same question, concerning
the extent of the Respondent’s motivation to terminate the em-
ployees for returning to the property later that afternoon, Ratz-
kin states unequivocally “I did not feel that the return late that
afternoon had anything to do with the termination.” (Tr. 211.)
Ratzkin’s testimony is not only inconsistent with the Respon-
dent’s position statement:
Upon further review, based on the timing and gravity of their
insubordination, the fact that they were given multiple
chances to end their sit down strike and return to work, and
the fact of their subsequent return to Company property and
refusal to leave until the police were called, their suspensions
were converted into terminations.
(GC Exh. 4 at 3), but it is inconsistent with his testimony on the
previous day. Thus, in response to the General Counsel’s ques-
tion, regarding each specifically named dischargee in the com-
plaint, if that specific individual was discharged for being in the
cafeteria, refusing to return to work, and returning to the facil-
ity, Ratzkin answered in the affirmative (Tr. 89–95). Shifting
reasons given for an employer’s action is evidence of pretext.
When a pretextual reason for discharge is given, it may be in-
ferred that the employer wishes to hide the real reason, which
in this case, is because the employees were engaged in con-
certed protected activity. See Sherwin-Williams Co., 313
NLRB 163 (1993). Accordingly, I find in the alternative, that
the Respondent discharged the employees in retaliation for
engaging in protected concerted activity and to warn other em-
ployees as to consequences of engaging in protected concerted
activities. E.g., Dove Restaurant, Inc., 232 NLRB 1172, 1177
fn. 20 (1977) and cited cases.
D. Johnnie’s Poultry Allegations
At the close of the hearing I granted counsel for the General
Counsel’s unopposed motion to amend the complaint to include
two allegations that the Respondent violated Section 8(a)(1) of
the Act by failing to provide the safeguards required by
Johnnie’s Poultry, 146 NLRB 770 (1964), enf. denied 344 F.2d
617 (8th Cir. 1965), before conducting employee interviews in
preparation for the unfair labor practice proceeding.
The Board and the courts have long recognized that an em-
ployer has a legitimate need to interview employees in order to
ascertain facts necessary in preparing it’s defense in an unfair
labor practice proceeding. The Board permits an employer to
exercise the privilege of interrogating employees on matters
involving their Section 7 rights without incurring a violation of
Section 8(a)(1) by generally requiring that the employer main-
tain strict compliance with the safeguards set forth in Johnnie’s
Poultry. E.g., Pratt Towers, Inc., 339 NLRB 157, 172 (2003).
Counsel for the General Counsel specifically alleges that the
Respondent’s counsel conducted interviews with two employee
witnesses, in preparation for the unfair labor practice proceed-
ing, without assuring the employees that there would be no
reprisals resulting from the interview and that participation in
the interview was voluntary.
The testimony of Bessy Beltran (Tr. 299–302) and Ana
Mejia (Tr. 338–342) supports counsel for the General Coun-
sel’s allegations. Respondent’s counsel argues, in brief, that
the record is unclear and that the witnesses were somewhat
confused by the General Counsel’s questions. There may have
been some initial confusion, attributable to language difficulties
or what appeared to be nervousness on the part of the wit-
nesses, but counsel for the General Counsel clarified any con-
fusion by her patient and persistent questioning. Respondent’s
counsel, over the objection of the counsel for the General
Counsel, was permitted wide latitude on redirect examination.
A reading of the witnesses’ testimony on redirect examination
demonstrates that this opportunity was not used to clarify any
HMY ROOMSTORE, INC. 967
perceived residual confusion. The Board has consistently re-
quired that an employer give each employee it interviews in
preparation for an unfair labor practice proceeding an explana-
tion as to the purpose of the questioning, assurances that no
reprisals will result from the questioning, and that participation
in the questioning is voluntary. Failure to administer even one
of the safeguards, absent unusual circumstances not present
here, is sufficient to find that the Respondent violated Section
8(a)(1). E.g., Bill Scott Oldsmobile, 282 NLRB 1073, 1075
(1987), and cases cited.
Accordingly, I find that by questioning Beltran and Mejia in
preparation for the unfair labor practice proceeding and failing
to assure them that their participation was voluntary and that no
reprisals would be forthcoming, the Respondent violated Sec-
tion 8(a)(1) of the Act. See, e.g., Le Bus, 324 NLRB 588
(1997); Mathis Electric Co., 314 NLRB 258, 264 (1994).
CONCLUSIONS OF LAW
1. HMY Roomstore, Inc., is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Respondent violated Section 8(a)(1) of the Act by:
(a) Suspending, discharging, or otherwise discriminating
against employees for engaging in concerted protected activity,
specifically engaging in a protected in-plant work stoppage.
(b) Interviewing employees in preparation for an unfair la-
bor practice proceeding without advising them that their par-
ticipation was voluntary and giving them assurances that no
reprisals would be forthcoming.
3. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having unlawfully suspended and then dis-
charged employees, it must offer them reinstatement and make
them whole for any loss of earnings and other benefits, com-
puted on a quarterly basis from date of suspension to date of
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987), and it must remove from its files any ref-
erence to the unlawful suspension and discharge of those em-
ployees.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended1
ORDER
The Respondent, HMY Roomstore, Inc., Jessup, Maryland,
its officers, agents, successors, and assigns, shall

1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1. Cease and desist from
(a) Suspending, discharging, or otherwise discriminating
against any employee for engaging in protected concerted ac-
tivity.
(b) Interviewing employees in preparation for unfair labor
practice proceedings without advising them that their participa-
tion is voluntary and assuring them that no reprisals will be
forthcoming.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer the em-
ployees named below full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(b) Make the employees named below whole for any loss of
earnings and other benefits suffered as a result of our unlawful
action against them, in the manner set forth in the remedy sec-
tion of the decision. The employees are:
Francisco Diaz-Amaya Hugo Hiralt
Lidio Diaz-Amaya Ulices Majano
Marvin Bonilla Juan Mejia
Jose Diaz Jorge Moreno
Oscar Espinoza Elmer Pastora
Pedro Flores Jose Rodriguez
Jorge Rubio
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful suspensions and dis-
charges, and within 3 days thereafter notify the employees in
writing that this has been done and that the unlawful suspen-
sions and discharges will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Jessup, Maryland, copies of the attached notice marked
“Appendix.”2 Copies of the notice, in English and Spanish, on
forms provided by the Regional Director for Region 5, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to

2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD968
ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respon-
dent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since April 26, 2002.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT suspend, discharge, or otherwise dis-
criminate against any of you for engaging in protected
concerted activity.
WE WILL NOT interview any of you in preparation for
unfair labor practice proceedings without advising you that
your participation is voluntary and assuring you that no
reprisals will be forthcoming.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer the employees named below full reinstate-
ment to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed.
WE WILL make the employees named below whole for
any loss of earnings and other benefits resulting from their
suspension and discharge, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
suspension and discharge of the employees named below,
and WE WILL, within 3 days thereafter, notify each of them
in writing that this has been done and that the unlawful
suspension and discharge will not be used against them in
any way.
The employees are:
Francisco Diaz-Amaya Hugo Hiralt
Lidio Diaz-Amaya Ulices Majano
Marvin Bonilla Juan Mejia
Jose Diaz Jorge Moreno
Oscar Espinoza Elmer Pastora
Pedro Flores Jose Rodriguez
Jorge Rubio
HMY ROOMSTORE, INC.